Wednesday, July 19, 2017

What's Wrong With Shotgun Weddings?

by Sherry F. Colb

My column for this week discusses the current state of California law, under which there is no minimum age requirement for marriage. There is a bill under consideration that would modify the law somewhat, but it has been amended to remove the age of 18 requirement and thus only adds some oversight in family court to prevent coercion. As I discuss in my column, the California statutory rape law, which requires that a person be 18 to consent to sex, suggests that sex with minors is inherently coercive and therefore not properly subject to oversight rather than outright prohibition.

In this post, I want to discuss one of the reasons that people cite for permitting children to get married, with parental (and court) permission: an unplanned pregnancy.
At first glance, this may seem like a sensible reason for allowing minors to marry. After all, if a girl is already pregnant and is planning to keep her baby, she will benefit from having a partner who can help with the baby, both financially and otherwise. Furthermore, the reality is that the two people involved are going to be roped together for the rest of their lives anyway, because they have a child together, so we might as well allow them to marry and make the family that will exist in any event a whole rather than a "broken" family.

The problem with this argument is that marriage does not transform a girl who becomes pregnant while still a minor into an adult. She is still someone who is, under the ordinary law governing sexual relations, incapable of giving true consent to sex. Permitting her to marry the father of the pregnancy does not just provide a potentially helpful partner for taking care of the child. It also authorizes the father to have sex with the girl, despite her age-related incapacity to consent.

Indeed, the father of the pregnancy is already a criminal for having had sex (in order to impregnate her in the first place) with a minor to whom he was not married. To allow the two to marry thus harkens back to the Biblical approach to rape, whereby the rapist could remedy his misconduct by marrying the victim. The thinking behind this approach is that rape is a crime because it lowers the marriage value of the victim, and the rapist can therefore redeem himself by acting on the "you break it, you buy it" principle and marrying the girl or woman at issue.

To add to the questionable nature of child marriages as a way to handle an unplanned pregnancy, consider the fact that it may be the parents of the pregnant girl who are most interested in having her marry the father of her child. After all, if he is out of the picture, then they may face the stigma of having a child with an out-of-wedlock baby (especially if they are religious), and they may also need to provide financial support for their daughter's child. Given these motivations, the parents (who must give consent to the child marriage) may actually be inclined to pressure their daughter (and the father of her pregnancy) to marry, thus adding to her incapacity to consent because of her age the coerciveness of the "shotgun wedding," where a parent insists on a wedding because his daughter is pregnant.

If the child and her boyfriend remain a couple until they are actually adults, and if he helps with the child notwithstanding his not being married to the mother, then the two have plenty of time to marry when she (or both she and he) reach the age of 18. This is actually an extremely young age at which to marry, but at least it excludes minors from this very adult institution.

As I argued in my column, the law should protect children from sex to which they still lack the full capacity to consent. That includes (and may be especially important for) children who become pregnant as a result of statutory rape. A child who is carrying another child is highly vulnerable to the sort of coercion that can come from parents who frown upon an unwed pregnancy. She also remains, despite her condition, too young to be consenting not only to sex but to a lifetime commitment to a marital partner. Despite its apparent attractiveness as a reason to permit minors to marry, an unplanned pregnancy does not defeat the arguments for maintaining a minimum age of 18 for getting married. If anything, it highlights a pitfall of failing to do so.

7 comments:

Both this post and the longer column were very interesting and quite good. I had honestly forgotten that the age of consent in California was 18; I would guess that must mean that the law there has remained unchanged since the United States Supreme Court's Michel M. decision many years ago. It's difficult for me to imagine (and I hope that I am not overstating your claim) that If California lowered its age of consent that you would think that juvenile marriages would be less problematic simply because the marriage laws had been rationalized or reconciled with the statutory rape laws. My own previous research discovered that: (1) at the time of Founding, most colonial statutes imported language from the Statute of Westminster, and thus set the age of consent at either 10 or 12; and (2) between 1885 and 1999 the ages of consent varied wildly among the states, with Delaware at one point having 7 as the age of consent. I note this because while I take the point that the stated rationale for statutory rape laws is that someone under whatever age the state has chosen is presumptively unable to consent, relying on that rationale would not seem to protect the people you're likely most concerned with--younger individuals who are coerced into sexual relationships with older people. That problem would not go away, particularly where the age of consent is not tied to biology, but instead reflects whatever economic, social, or political anxieties existed at the time the statutory rape law was passed. And if we can't guarantee that the age of consent will be tied to some sort of scientific measure of maturity, then I'm not entirely sure that I understand why the parental consent + judicial oversight option wouldn't actually be sufficient to protect those individuals who might have, in fact, consented to sex and desire to get married.

As to the first comment, my overall thought is that marriage warrants a certain level of maturity & eighteen is a rough dividing line. The fact marriage provides a pass to sex (previously, this mattered more, since fornication was generally illegal, at least formally) is but part of that.

Also, I also think in most cases parental consent + judicial oversight will avoid problems. Not really sure any judges would actually accept some thirty year old guy marrying a fifteen year old. But, maybe some will and did fall between the cracks (examples probably can be cited).

A few things. First, California (like most states) now has age-gap statutes that reduce (and in some cases eliminate) the criminal prohibition on "underage" sex if both parties are under the age of consent, and/or are very close in age. So it is simply not correct to say that every pregnant underage girl was the victim of a sex crime (and thus, would continue to be victimized in that way after marriage). It is also the case that even before age-gap statutes (sometimes called "Romeo and Juliet" statutes, the law did not apply to married couples. So a legalistic approach won't do the job here. The real questions around very young parents, and very young people engaging in sexual activity voluntarily, has to do with the purposes served by age of consent laws.

Well said, Antonio. Prof Colb's column on Verdict is much more even-handed, making some very good points. Reading this blog post as you I did, I thought the characterization of the father as a criminal and a rapist and the invocation of the "biblical approach to rape" to be less than enlightening. As I understand it, if the father is a minor then the girl is also a "criminal" and a "rapist" regardless her age. I share your view that parental consent and judicial oversight would seem very good safeguards. It should also be noted that California apparently permits a defense that the perpetrator reasonably believed the minor to be of the age of consent. That legal detail suggests a recognition by the state that precluding consent under the statutory rape law is not a perfect test - not that a lack of consent is okay sometimes.

The same concerns underlying the law's preclusion of consent in statutory rape laws is relevant to the marriage question. But I don't think the conclusion must be absolutely the same, no exceptions. As a general rule, I think it would be unwise for a couple of 16 year olds to marry. Or 18 years olds, for that matter. Maybe an age of 21 would be acceptable. Out-of-wedlock pregnancy poses special risks that Prof Colb identifies: whether the guy and/or girl are merely trying to redeem themselves or the parents are applying pressure. While this deserves serious consideration, particularly by a judge, it doesn't suggest a lack of consent as conceptualized in statutory rape laws.